MALE GAY SEX CONSENT LAWS TO BE PROBED BY COURT
15/11/2010
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Submitted by ILGA-Europe
Original source: http://www.chronicle.gi/headlines_details.php?id=20472
The Supreme Court will today consider the thorny question of whether Gibraltar wrongly discriminates against homosexual men by forbidding them from having sex before the age of 18.
The court has been asked by Chief Minister Peter Caruana and Attorney General Ricky Rhoda to make a declaration on whether existing law on the age of consent for gay men is constitutional.
At issue is the difference between the age of consent for homosexuals compared to that for lesbian and heterosexual couples.
Under existing law, males have to wait until they are 18 before they are legally allowed to have anal sex. In contrast, heterosexual and lesbian sex becomes legal at 16.
The court is being asked to rule on whether that difference discriminates against homosexual men and breaches their basic rights under Gibraltar’s Constitution.
The case is unique and is the first time the court has been asked to test the constitutionality of a piece of legislation.
It touches on fundamental, core issues of law and is fraught with complexity, throwing together an emotive mix of religion, sex and constitutional law.
The Government will argue that the difference in the age of consent is constitutional and that lowering the age of consent for male anal sex could damage society.
It will justify its position primarily on religious and health grounds.
The British Government will argue that the age should be equalised and that any difference is unconstitutional.
Even before the case came to court, Britain made clear that it had not ruled out imposing legislation on Gibraltar to equalise the age of consent for heterosexual and homosexual couples.
Gibraltar gay rights group GGR will also take a similar stance on the need to equalise the age of consent for everyone.
Unite the union will also participate and, like GGR, will bear its own legal costs but will not be responsible for any other party’s. The Evangelical Alliance will also participate on similar terms.
WHAT NEXT
One crucial issue that lawyers will argue over the coming days is what happens if the court rules that the difference in the age of consent is unconstitutional.
Chief Justice Anthony Dudley has already made clear that this is the only point he will consider.
In other words, he may decide that the law is unconstitutional, but he will not say at what age consent should be equalised.
That could create an awkward situation.
If the ruling is that the age of consent must be equalised, the Government has said it will hold a referendum and seek the public’s view on what the equalised age of consent should be.
One option is to allow homosexuals to have sex at 16. Another is to raise the heterosexual age of consent to 18, though critics say this risks criminalising Gibraltar’s youth. A third option is to meet halfway and set the age of consent at 17 for everybody.
In any event, a referendum on this question will likely take months to organise.
What happens in the interim? If a court has ruled the law as it stands discriminates against homosexual men, can two men under 18 be prosecuted for having sex before the age of consent is revised and the law is changed?
These are issues that the court will have to grapple with as it dissects the various issues at play in this case.
For its part, government officials have drawn up contingency plans in the event that it loses its arguments.
The Chronicle understands that the Government is ready to legislate on an emergency basis to remove the discrimination should that become necessary.
It will also move rapidly to carry out the public consultation exercise on where the equalised age of consent should be set.
Pending any new legislation, the Crown would be unlikely to prosecute any homosexuals for having sex in circumstances where heterosexuals and lesbians are not breaking the law.
The Supreme Court will today consider the thorny question of whether Gibraltar wrongly discriminates against homosexual men by forbidding them from having sex before the age of 18.
The court has been asked by Chief Minister Peter Caruana and Attorney General Ricky Rhoda to make a declaration on whether existing law on the age of consent for gay men is constitutional.
At issue is the difference between the age of consent for homosexuals compared to that for lesbian and heterosexual couples.
Under existing law, males have to wait until they are 18 before they are legally allowed to have anal sex. In contrast, heterosexual and lesbian sex becomes legal at 16.
The court is being asked to rule on whether that difference discriminates against homosexual men and breaches their basic rights under Gibraltar’s Constitution.
The case is unique and is the first time the court has been asked to test the constitutionality of a piece of legislation.
It touches on fundamental, core issues of law and is fraught with complexity, throwing together an emotive mix of religion, sex and constitutional law.
The Government will argue that the difference in the age of consent is constitutional and that lowering the age of consent for male anal sex could damage society.
It will justify its position primarily on religious and health grounds.
The British Government will argue that the age should be equalised and that any difference is unconstitutional.
Even before the case came to court, Britain made clear that it had not ruled out imposing legislation on Gibraltar to equalise the age of consent for heterosexual and homosexual couples.
Gibraltar gay rights group GGR will also take a similar stance on the need to equalise the age of consent for everyone.
Unite the union will also participate and, like GGR, will bear its own legal costs but will not be responsible for any other party’s. The Evangelical Alliance will also participate on similar terms.
WHAT NEXT
One crucial issue that lawyers will argue over the coming days is what happens if the court rules that the difference in the age of consent is unconstitutional.
Chief Justice Anthony Dudley has already made clear that this is the only point he will consider.
In other words, he may decide that the law is unconstitutional, but he will not say at what age consent should be equalised.
That could create an awkward situation.
If the ruling is that the age of consent must be equalised, the Government has said it will hold a referendum and seek the public’s view on what the equalised age of consent should be.
One option is to allow homosexuals to have sex at 16. Another is to raise the heterosexual age of consent to 18, though critics say this risks criminalising Gibraltar’s youth. A third option is to meet halfway and set the age of consent at 17 for everybody.
In any event, a referendum on this question will likely take months to organise.
What happens in the interim? If a court has ruled the law as it stands discriminates against homosexual men, can two men under 18 be prosecuted for having sex before the age of consent is revised and the law is changed?
These are issues that the court will have to grapple with as it dissects the various issues at play in this case.
For its part, government officials have drawn up contingency plans in the event that it loses its arguments.
The Chronicle understands that the Government is ready to legislate on an emergency basis to remove the discrimination should that become necessary.
It will also move rapidly to carry out the public consultation exercise on where the equalised age of consent should be set.
Pending any new legislation, the Crown would be unlikely to prosecute any homosexuals for having sex in circumstances where heterosexuals and lesbians are not breaking the law.
